Octavianus (Migration)

[2021] AATA 3328

Octavianus (Migration) [2021] AATA 3328 (27 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Muhammad Orell Octavianus

CASE NUMBER:  1819489

DIBP REFERENCE(S):  CLF2017/75578

MEMBER:Peter Vlahos

DATE: 27 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

·      PIC 4017 for the purpose of cl.445.226 of Schedule 2 to the Regulations

This Statement was made on 27 August 2021 at 1.10PM

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) – consent of both parents for the child’s visa – consent of child over 12 years – father not communicating with the visa applicant – valid court order permitting removal from Indonesia – written consent from the applicant’s father – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 445.226; Schedule 4; Public Interest Criteria 4017

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2018 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of  Indonesia, born 3 March 2005. He made the application for the visa on 20 October 2017. The delegate refused to grant the visa on the basis that cl. 445.226 was not met because the delegate was not satisfied the applicant’s father gave consent for the child’s migration for the purpose of Public Interest Criterion (PIC) 4017. The applicant seeks review of the delegate’s decision.

3. An application was made by the applicant to the Tribunal to review the delegate’s decision on 4 July 2018.

4. A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was held on 26 August 2021 via telephone link.

5. The applicant was assisted at the hearing by his representative Mr Kelly.

6. The Tribunal also heard evidence from the applicant’s witness, his mother, Mrs Kelly.

   Relevant law

7. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations.

8. The issue in the present case is whether the applicant meets Item 4017. It relevantly provides

   The Minister is satisfied of 1 of the following:

   (a)      the law of the applicant’s home country permits the removal of the applicant;

   (b)      each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

   (c)      the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

   Does the applicant meet Item 4017?

9. According to the primary decision record, a copy of which the applicant presented to the Tribunal, the applicant provided with his Visitor visa application form 1229, consent to the child’s migration, signed by his mother only. A statutory declaration was also provided signed by the applicant’s mother on 16 October 2017. This declaration deposed that the mother had flown to Jakarta in June 2017 to spend two months there. The applicant stayed with his mother for over a month. In that time, they consulted a lawyer and the lawyer advised them that while the applicant is under the age of 12 he is under his mother’s care, once he reaches 12 years of age he could legally make the decision on he wants to live with.

10. It should be noted that the applicant’s mother has been divorced from the applicant’s father for a number of years and has re-married an Australian national and currently lives in Australia.

11. With application submitted by the applicant – a Form 1229 – Consent to grant an Australian visa to a child under the age of 18 years was attached and this form was signed by the applicant’s mother only.

12. On 13 December 2017 the Department wrote to the applicant and requested a variety of documents namely:

    §A copy of the applicant’s birth certificate

    §Evidence the applicant’s mother holds either a valid court order that permits her to remove the applicant from Indonesia, or evidence the applicant’s father agreed to the applicant’s migration to Australia, or evidence the applicant’s mother has a valid Australian Court Order issued by the Family Court of Australia and the grant of the visa would be consistent with that order.

13. On 7 January 2018 the Department received an email from the applicant’s sponsor (his mother), a copy of the applicant’s birth certificate and other documents. The applicant's birth certificate identified his parents as lstri OCTAVIANUS (father) and Nizmah ALIA (now Mrs Kelly).

14. In the email the sponsor (applicant’s mother) advised

    'In regard to the Parental Responsibility information, Nizmah did make reference to the father’s name on the Form 1229 but as per our application information, the father will not correspond/communicate with Nizmah in any way. Since Orel has been here with his mother in Australia there has been very little communication from Orel’s father to Orel.

    There has only been one or two messages sent to Orel through social media, usually only intimidating messages and only as a result of Orel sending a message through his brothers. As stated in our Application and statutory declarations, Orel does not want to return to Indonesia.

    He has made the decision to live with his mother, he has settled into his life here with his mother and is scared to return to Indonesia. Orel’s wellbeing is our number one priority.

    Orel did get a copy of his father’s local identity card when he left for Australia, which we have supplied but we cannot get any more details since he refuses to speak with Nizmah unless its an abusive or condescending message.'

15. On 24 January 2018 the Department wrote to the applicant and requested a variety of documents including evidence the applicant's mother holds either a valid court order that permits her to remove the applicant from Indonesia, or evidence the applicant's father agrees to the applicant's migration to Australia, or evidence the applicant's mother has a valid Australian Court Order issued by the Family Court of Australia and the grant of the visa would be consistent with that order.

16. On 24 January 2018 the Department received an email from the sponsor in which she advised:

    'In regard to the parental/custody paperwork. Nizmah has no records or paperwork in regard

    to this. There has never been any paperwork in regard to custody after her divorce.

    Since Orel is 13 years old, he is older enough to make his own decision as to which parent

    he wants to live with as we have been told by an Indonesian law firm.'

17. On 25 January 2018, the Department advised the sponsor that under Australian law, the child is a minor and therefore one of the requirements to be granted this visa, is that the parental/custody requirement is met.

18. On 29 January 2018, the sponsor advised they are in the process of gathering the required information.

19. On 28 February 2018, the sponsor advised they were in the process of gathering the parental/custody documents as requested.

20. On 18 April 2018, the sponsor provided an update to the Department. In his email he advised:

    'Just an update in regard to the process of gathering the parental/custody documents as requested. We have sent the certified documents to Jakarta to our Lawyer and they are in the process of presenting them to the appropriate court which we have been told could be a month or two to process. '

21. On 8 June 2018 the Department received advice from the sponsor that the custody case has been lodged in court in Indonesia and they are waiting further instructions from their lawyer. Attached to the email was a Declaration Letter signed by the lawyer. In this declaration the lawyer deposed as follows:

    §The applicant's mother is divorced and currently resides in Australia.

    §They have been appointed by a Power of Attorney dated 8 March 2018 in relation to the filling 'lawsuit of maintenance and custody rights at the Religious Court of West Jakarta pursuant to the Case Register Number: 1314/Pdt.G/2018/PA. JB

    §The case was lodged against the applicant's father. The Declaration provides the address and details of the applicant's father.

22. The applicant provided a number of documents to the Tribunal. The first document received and consider was a translated into English copy of the decision of the Religious Court of West Jakarta dated 15 October 2018. That document among other matter stated as following:

    ‘To grant the Plaintiff’s Lawsuit in its entirety. To declare that the maintenance and custody of the Plaintiff’s and Defendant’s third child named Muhammad Orell Octavianus, sex male, born on 3, March 2005, as described in Birth Certificate Number 9452/U/JS/2005, dated Aril 27 2005 which was issued by the Office of Department for Population and Civil Registration of South Jakarta, is at the Plaintiff as his mother;’ 

23. The said judgement also goes into detail as to the all matters that have been put into place by the applicant’s mother and her husband for his proper welfare and education. Only all these matters the Court was satisfied and granted the applicant’s mother guardianship and custody of the applicant. The applicant also provided a second document - a signed consent letter from his father (the mother’s former husband) giving permission and agreeing to the Court’s determination and consenting to the applicant to live in Australia on a permanent basis.[1]

    [1] See, Tribunal File for the Jakarta Court’s translated decision and father written consent and copy of identity card.

24. The Tribunal discussed at length these documents both with the applicant, Mr Octavianus, his mother and her husband, Mr Kelly (Octavianus’ ‘step-father’) and all parties informed the Tribunal that they were content with the situation as it has transpired since Mr Octavianus joined them in Australia. According to the consensus of opinion, all parties are happy and indeed, Mr Octavianus has the better of both worlds, he told the Tribunal. He is doing well at school. He has regular contact with his older brothers and father who now considers his son’s presence in Australia with his mother is a “very good thing”.

25. Having regard to that information, the Tribunal is satisfied that each person who can lawfully determine where the applicant is to live consents to the grant of the visa. The Tribunal is satisfied the applicant meets PIC 4017(a) and PIC 4017 for the purpose of cl. 445.226.

    Conclusion

26. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

27. The Tribunal remits the application for an Extended Eligibility (Temporary) (Class TK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 445 (Dependent Child) visa:

    ·            PIC 4017 for the purpose of cl.445.226 of Schedule 2 to the Regulations

    Peter Vlahos
    Member